The Piracies and Felonies Clause

The Congress shall have Power . . . To define and punish Piracies and Felonies committed on the High Seas. . . .

—Eugene Kontorovich

Introduction

The Piracies and Felonies Clause grants Congress the power to punish maritime crime and implies that other enumerated powers do not grant such a power. James Madison defined piracies, a “technical term of the law of nations,” as robbery on the high seas.¹ As Justice Joseph Story observed, “felonies” was a broad umbrella term with “indeterminate” meaning.² The Framers appear to have singled out piracy because of its unique universal jurisdictional status. It could be punished by any nation, even one without any connection to the offense. During the Constitutional Convention, there was little debate about the propriety of this power. Many Supreme Court cases from the early nineteenth century considered the clause, but during the twentieth century, this power faded into obscurity with changes in maritime commerce and the expansion of Congress’s Commerce Power doctrine. Questions have emerged about Congress’s ability to use the power to legislate against maritime drug trafficking with no connection to the United States.

History Before 1787

“Piracies and felonies” was a well-known English legal formula for maritime crimes used in statutes and leading treatises.³ During the reign of King Henry VIII, a statute brought piracy within the common-law procedures and treated it as a felony.⁴ Piracy was one of the few international law offenses applicable to individuals and incorporated into the common law. It was also unique in its jurisdictional aspects. Under international law, nations could punish crimes only within their territory, but piracy on the high seas could be punished by any nation that apprehended the wrongdoer.⁵

The Articles of Confederation granted Congress the exclusive power to “appoint[] courts for the trial of piracies and felonies committed on the high seas.”⁶ A 1781 ordinance instructed special panels of state judges to hear such cases.⁷ However, a report to Congress noted that “the punishment of piracies and felonies has a different operation in some of the States” and sought to increase uniformity by providing detailed procedures.⁸ Under the Articles, Congress could provide for the “punishment” of such offenses but could not define the conduct that would trigger such punishment—the substance of the offense.⁹ As a result, conduct on U.S. vessels could be subject to different legal consequences if prosecuted in different states.

The Constitutional Convention

The need to strengthen Congress’s legislative powers over these crimes was taken for granted by the delegates. James Madison of Virginia observed that the current system did not produce “uniformity or stability in the law.”¹⁰ The Piracies and Felonies Clause was adopted in almost the exact form that came out of the Committee of Detail. There was little substantive debate.

The Committee draft provided that Congress could “declare the law and punishment of piracies and felonies.”¹¹ Madison moved successfully to strike Congress’s power of “punishment” of these crimes. To avoid inconsistency among state laws, Madison explained, Congress would need only the power to “define” piracies.¹² Gouverneur Morris of Pennsylvania secured the restoration of “punishment” to the draft as a replacement for “declare the law.”¹³

James Wilson of Pennsylvania thought “felonies” were “sufficiently defined by Common law.”¹⁴ Madison thought the term was “vague.” The delegates were apparently concerned about limiting Congress to some predefined meaning of “felonies,” a term that they understood to be general. The definition and jurisdictional status of piracies, however, seem to have been so commonly understood that they were not discussed in Philadelphia.

After some discussion, Madison and Edmund Randolph, also of Virginia, convinced the delegates to reword the draft so that Congress would have the power to “define and punish piracies and felonies.” The delegates did not understand this text as confining Congress to the “preexisting meaning” of felonies, but rather allowed the creation of new ones, though not necessarily novel “piracies” subject to universal jurisdiction. Oliver Ellsworth of Connecticut proposed expanding the text to give Congress the power “to define and punish piracies and felonies committed on the high seas. . . .”¹⁵ His proposal was approved unanimously. “Piracies” and “Felonies” were understood by the Framers to be two separate powers or “cases,” but “felonies on the high seas” was a catch-all category of which piracy was also one element. This may not be a redundancy: Piracy may have been mentioned specifically to grant Congress the universal jurisdiction over piracies.¹⁶

Early Practice and Judicial Precedent

In the Crimes Act of 1790, Congress first exercised its “define and punish” powers. The statute criminalized “murder or robbery” by “any person or persons” on the high seas, as well as various forms of maritime embezzlement and conversion by a ship’s crew.¹⁷

In the early nineteenth century, there was a surge of maritime violence connected with South American revolts against Spain. These insurgent republics issued letters of marque authorizing privateers to attack enemy shipping. These conflicts led to the Supreme Court’s formative decisions concerning the Piracies and Felonies Clause. (See Essay No. 57.) In United States v. Palmer (1818), Chief Justice John Marshall’s majority opinion held that Congress could not have intended the Crimes Act to apply to foreign piracy against foreign vessels.¹⁸

United States v. Furlong (1820) addressed the status of “felonies” on the high seas that were non-piratical crimes.¹⁹ The Court held that Congress could not punish offenses that involved only foreigners on foreign vessels. For example, murder on the high seas was not universally cognizable in the law of nations. Thus, Congress could not punish murder without regard for the nationality of the vessel or offender. The Court ruled that piracy and a felony like murder are “things so essentially different in their nature, that not even the omnipotence of legislative power can” treat them identically. United States v. Holmes (1820) limited this holding so that Congress could punish such crimes on “stateless” vessels.²⁰

In response to Palmer, Congress promptly revised the Crime Act. The statute would now punish with death “any person or persons [who] shall, upon the high seas, commit the crime of piracy as defined by the law of nations,”21 regardless of the nationality of the vessels. In United States v. Smith (1820), the defendant argued that the new statute was also an unconstitutional exercise of Congress’s power because it failed to “define” piracy.²¹ Justice Joseph Story’s majority opinion concluded that piracy had a well-established meaning in international law that Congress could incorporate by reference.

Aside from piracy and murder on the high seas, early Congresses’ most notable exercise of the felonies power was to restrict, and ultimately in 1820 ban on pain of death, American involvement in the transatlantic slave trade.

Modern Practice and Judicial Precedent

In the second half of the nineteenth century, the Piracies and Felonies Clause fell into disuse as maritime piracy sharply declined. In the twentieth century, the expansion of Congress’s federal commerce powers combined with changes in maritime commerce and technology made the enumerated power over piracies and felonies less relevant to lawmaking. However, it still arises in certain contexts.

First, the Maritime Drug Law Enforcement Act (MDLEA) regulates international drug trafficking.²² This law led to a long series of cases considering the scope of the “Felonies” power. The MDLEA extends U.S. drug trafficking laws extraterritorially to foreign vessels on the high seas even when they have no connection to the United States, such that foreigners with no connection to the United States can be prosecuted for smuggling in violation of U.S. narcotics laws.²³ Some MDLEA cases have allowed the prosecution of entirely land-based crimes in foreign countries.²⁴ These prosecutions are in tension with the text of the Piracies and Felonies Clause, which is limited to conduct on the high seas.²⁵

Second, in 2008, a sudden surge in Somali piracy resulted in federal charges being brought against numerous captured attackers. These prosecutions raised novel questions about the piracy power. For example, land-based aiding and abetting could be punished even though it did not occur on the “High Seas.”²⁶ In another case, pirates had mistakenly attacked a U.S. naval vessel. The pirates were promptly captured, although they never actually boarded the naval vessel. The defendants argued that the Crime Act of 1820, which criminalized “piracy against the law of nations,” froze the law as it stood in 1820 when mere attempts to board a vessel arguably were not acts of “piracy.” (The current statute uses essentially the same language as the 1820 law while reducing the maximum penalty to life in prison.²⁷) The Fourth Circuit rejected this contention. The court held that the meaning of “piracy against the law of nations” under the statute could evolve with changes in its international legal definition.²⁸

Third, since World War II, there have been attempts to extend “universal jurisdiction,” which once was unique to piracy, to prosecute other international crimes, such as torture or genocide.²⁹ A land-based Somali pirate negotiator was involved in arranging a ransom for a hijacked Danish vessel. The negotiator was later charged in federal court with conspiracy to commit piracy after having been lured to the United States by federal agents. The D.C. Circuit ruled that conspiracy to commit piracy is not criminalized under international law and therefore cannot be punished universally.³⁰ This holding was consistent with the Piracies and Felonies Clause, which does not authorize universal jurisdiction over offenses that are not piratical. In Hamdan v. Rumsfeld (2006), the plurality found that conspiracy to commit war crimes was not an international law offense and thus could not be punished as an exercise of Congress’s Law of Nations Power.³¹ Yet the D.C. Circuit Court concluded that land-based aiding and abetting of piracy did fall within universal jurisdiction, not because it was a separate offense but because it was a mode of commission.³²

Open Questions

• Can Congress apply universal jurisdiction under the MDLEA? Several judges have suggested that it cannot do so.³³
• Is U.S. jurisdiction over a vessel under the MDLEA a question of subject-matter jurisdiction? Several federal courts of appeals have held that it is,³⁴ but the First Circuit Court of Appeals held that it was not, and the Supreme Court denied review on this issue.³⁵

1. 3 Farrand’s 331–32. ↩︎
2. 3 Story’s Commentaries § 1157. ↩︎
3. 4 Blackstone 71. ↩︎
4. Sir Edward Coke, The Third Part of the Institutes of the Laws of England: Concerning High Treason; and Other Pleas of the Crown, and Criminal Causes 111 (1680). ↩︎
5. 4 Blackstone 71. ↩︎
6. Articles of Confederation, art. IX, § 1. ↩︎
7. 19 J. Cont. Cong. 274 (Mar. 11, 1781). ↩︎
8. 29 J. Cont. Cong. 682 (Sept. 6, 1785), 797–805 (Oct. 3, 1785). ↩︎
9. Id. at 798; 3 Story’s Commentaries §§ 1153–55. ↩︎
10. 2 Farrand’s 316. ↩︎
11. Id. at 315. ↩︎
12. Id. at 316. ↩︎
13. Id. at 315. ↩︎
14. Id. at 316. ↩︎
15. Id. ↩︎
16. Eugene Kontorovich, The “Define and Punish Clause” and the Limits of Universal Jurisdiction, 103 Nw. U. L. Rev. 149, 162 (2008). ↩︎
17. An Act for the Punishment of Certain Crimes Against the United States, ch. 9, §§ 8, 12, 1 Stat. 112 (1790). ↩︎
18. 16 U.S. (3 Wheat.) 610, 611 (1818). ↩︎
19. 18 U.S. (5 Wheat.) 184, 228 (1820). ↩︎
20. 18 U.S. (5 Wheat.) 412, 414–15 (1820). ↩︎
21. 18 US. 153, 159–63 (1820). ↩︎
22. 46 U.S.C. ch. 705. ↩︎
23. United States v. Vargas, 781 F. App’x 815, 819 (11th Cir. 2019); United States v. Nueci-Pena, 711 F.3d 191, 198 (1st Cir. 2013). ↩︎
24. United States v. Ballestas, 795 F.3d 138, 147 (D.C. Cir. 2015). ↩︎
25. United States v. Bellaizac-Hurtado, 700 F.3d 1245, 1248 (11th Cir. 2012); United States v. Carvajal, 924 F. Supp. 2d 219, 260 (D.D.C. 2013), aff’d sub nom. United States v. Miranda, 780 F.3d 1185 (D.C. Cir. 2015); United States v. Barbosa-Rodriguez, 680 F. Supp. 3d 121, 127–28 (D.P.R. June 28, 2023). ↩︎
26. United States v. Shibin, 722 F.3d 233, 243 (4th Cir. 2013). ↩︎
27. 18 U.S.C. § 1651. ↩︎
28. United States v. Dire, 680 F.3d 446, 467 (4th Cir. 2012). ↩︎
29. Eugene Kontorovich, The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation, 45 Harv. Int’l L.J. 183 (2004). ↩︎
30. United States v. Ali, 718 F.3d 929, 942 (D.C. Cir. 2013). ↩︎
31. 548 U.S. 557, 563, 601 (2006). ↩︎
32. Ali, 718 F.3d at 947. ↩︎
33. United States v. Angulo-Hernandez, 576 F.3d 59, 60 (1st Cir. 2009) (Tourrella, J., dissenting); United States v. Aybar-Ulloa, 987 F.3d 1, 15 (1st Cir.) (en banc) (Barron, J., concurring). ↩︎
34. Miranda, 780 F.3d at 1192. ↩︎
35. United States v. Davila-Reyes, 84 F.4th 400 (1st Cir. 2023) (en banc), cert. denied, 144 S.Ct. 2634 (2024). ↩︎